Plaintiff Veronica Pacheco sued Defendants Whiting Farms Inc. and its
controlling owners alleging they failed to pay her overtime wages and terminated her
employment in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§
201-219.
FLSA generally requires employers to pay their employees one and one-half times the
employee's regular rate of pay (overtime) for each hour worked in excess of forty hours
during any given week. 29 U.S.C. § 207(a)(1). FLSA's overtime wage
requirements do
not apply, however, "with respect to . . . any employee employed in agriculture[.]" Id.
§ 213(b)(12). FLSA also prohibits retaliation against an employee because she
engaged
in protected activity under the Act. Id. § 215(a)(3).

The parties filed cross-motions for summary judgment. The district court granted
Defendants' motion for summary judgment, holding Defendants were not required to pay
Plaintiff overtime wages under FLSA's "agricultural exemption" and Defendants did not
terminate Plaintiff in violation of FLSA's anti-retaliation provision.(1) On appeal, Plaintiff
argues the district court erred in granting summary judgment because (1) she was not an
agricultural employee exempt from the payment of overtime wages under FLSA, and (2)
genuine issues of material fact exist regarding whether Defendants terminated her for
requesting overtime wages. We have jurisdiction under 28 U.S.C. § 1291. We
review
the grant of summary judgment de novo, applying the same standard as the district court.
Welding v. Bios Corp., 353 F.3d 1214, 1217 (10th Cir. 2004). Summary judgment is
appropriate where no genuine issues of material fact exist and the moving party is
entitled to judgment as a matter of law. Id. Applying this standard, we affirm.

I.

Thomas Whiting and N. Lyle Johnston are the president and vice-president,
respectively, of Whiting Farms, Inc. (collectively "Defendants"). Defendants "raise
chickens for feathers." Defendants breed, raise, euthanize, and processes chickens for
their "pelts" or "hackle." Hackle consists of feathers still attached to the skin (pelts) of
the chickens. Hackle is eventually used to tie fishing-flies.

From conception to compost, the chickens raised and euthanized at Whiting Farms
never leave Defendants' property. Processing the chickens essentially involves
euthanizing the chickens, removing the chickens' pelts, drying the pelts to remove
moisture and fat, and trimming the pelts into the desired shape.(2) The pelt is next graded
to determine its value. After grading, the pelt is sent to the packaging department.
Packaging employees then separate the pelts according to their previously assigned grade
and color, stamp the back of the pelt with its grade designation, and make a record of the
pelt. Depending on demand, the pelt is then either placed in bulk storage or packaged.

A pelt goes to storage if it is not needed to fill a current order. The pelt is stored
in its natural state (i.e., not in a box). The pelt is perishable if exposed to water or insect
infestation; however, if the pelt is stored in a safe and reasonably cool environment it will
last years. Conversely, the pelt is packaged immediately if it is needed to fill an order.
To package a pelt, an employee staples the pelt onto a board and places it into a zip-lock
bag. Next, the packaging employee places a computer generated bar-code on the bag and
scans the bar-code, which places the product into a computer operated inventory system.
The packaged pelt is then taken to the shipping department. UPS picks up the pelts from
the shipping department and delivers them to retailers.

Plaintiff began working in Defendants' packaging department in 1996. Plaintiff's
position did not require any specialized training or experience. In August 1999,
Defendants promoted Plaintiff to "packaging foreperson." As foreperson, Plaintiff
directed day-to-day activities of the packaging staff, scheduled days off, ensured
packaging inventories were kept at proper levels, and continued to package pelts.
Defendants implemented a new packaging system shortly after Plaintiff's promotion,
which operated pursuant to a "Packaging Priority Report." The report informs packaging
employees what products need to be packaged to meet the current market demand.
Packaging employees then prioritize their duties according to the report.

Plaintiff's employment relationship with Defendants deteriorated after
implementation of the Packaging Priority Report system. Plaintiff disagreed with how
the new system allocated packaging employees' duties and often felt the Packaging
Priority Report was wrong. In February 2000, Defendants met with Plaintiff twice
because she was not packaging product correctly. After the second meeting, Defendants
informed Plaintiff that further resistance to change would constitute misconduct and
could result in disciplinary action. On August 3, 2000, Defendants met with Plaintiff a
third time because she had missed a meeting with her immediate supervisor regarding the
allocation of job duties within the packaging department and allegedly started a rumor
her supervisors were "out to get her." After the meeting, Defendants suspended Plaintiff
for one and one-half days without pay for insubordination and misconduct. Defendants
also put Plaintiff on notice she would be subject to further disciplinary action, including
termination, if her unacceptable behavior continued.

Around August 26, 2000, Plaintiff learned employees in the shipping department
received overtime wages. Plaintiff regularly worked over forty-hours per week in the
packaging department. Defendants paid Plaintiff her regular rate of pay for all hours
worked, but did not pay her overtime wages for those hours worked in excess of forty.
Accordingly, Plaintiff asked Defendant Johnston if the "packaging department could get
overtime like shipping." Defendant Johnston appeared "nervous and shocked" upon
Plaintiff's inquiry but nevertheless informed Plaintiff he would look into the matter.
Later that day, Defendant Johnston explained to Plaintiff that packaging employees did
not receive overtime wages because they were considered "agricultural." Defendant
Johnston further explained shipping employees were not considered "agricultural," and
thus entitled to overtime wages, because shipping employees worked with products not
wholly produced on Whiting Farms. Plaintiff responded "okay" and went back to work.
Plaintiff never mentioned overtime wages to Defendants again.

In October 2000, Plaintiff disregarded her immediate supervisor's orders
regarding the allocation of job duties within the packaging department. Defendant
Johnston was notified of the situation. Upon arriving in the packaging department,
Defendant Johnston observed a large amount of backlogged product and decided
Plaintiff needed to be disciplined for her insubordination. After reviewing the situation,
Defendants decided Plaintiff's termination was in the best interest of the company.
Defendant Whiting made the ultimate decision to terminate Plaintiff because her failure
to follow reasonable work-related instructions under the Packaging Priority Report
system hindered productivity. On October 17, 2000, Defendants terminated Plaintiff.

FLSA prohibits any person from violating the maximum hour provisions of the
Act. 29 U.S.C. § 215(a)(2). FLSA's maximum hour provisions require, among other
things, employers to pay their employees at a rate not less than one and one-half times the
employee's regular rate of pay for each hour, or fraction thereof, the employee worked
over forty-hours in a workweek. Id. § 207(a)(1). Section 213(b), however,
sets forth
several industry-specific exemptions from the Act's maximum hour provisions. Id.
§ 213(b)(1)-(30). FLSA's agricultural exemption provides the Act's maximum hour
provisions "shall not apply with respect to . . . any employee employed in agriculture[.]"
Id. § 213(b)(12). "The agricultural exemption was meant to apply broadly
and to
embrace the whole field of agriculture, but it was meant to apply only to agriculture; thus
the critical issue is what is and what is not included within that term." Rodriguez v.
Whiting Farms, Inc., 360 F.3d 1180, 1185 (10th Cir. 2004) (internal quotations and
citation omitted). FLSA provides:

"Agriculture" includes farming in all its branches and among other things
includes the cultivation and tillage of the soil, dairying, the production,
cultivation, growing, and harvesting of any agricultural or horticultural
commodities . . ., the raising of livestock, bees, fur-bearing animals, or
poultry, and any practices (including any forestry or lumbering operations)
performed by a farmer or on a farm as an incident to or in conjunction with
such farming operations, including preparation for market, delivery to
storageor to market or to carriers for transportation to market.

29 U.S.C. § 203(f) (emphasis added).

FLSA's definition of agriculture "includes farming in both a primary and a
secondary sense." Bayside Enter., Inc. v. NLRB, 429 U.S. 298, 300 (1977). Farming in
all its branches constitutes primary farming. Farmers Reservoir & Irrigation Co. v.
McComb, 337 U.S. 755, 762 (1949); 29 C.F.R. § 780.105(b). "Primary farming
includes
the raising of poultry." Holly Farms Corp. v. NLRB, 517 U.S. 392, 399 (1996); 29
U.S.C. § 203(f); 29 C.F.R. § 780.108. "Secondary farming has a broader
meaning,
encompassing . . . any practices . . . performed by a farmer or on a farm as an incident to
or in conjunction with such farming operations, including preparation for market,
delivery to storage or to market or to carriers for transportation to market." Holly
Farms,
517 U.S. at 398 (internal quotations and citation omitted); 29 C.F.R. § 780.105(c). To
constitute secondary farming, the practice must be (1) performed by a farmer or on a
farm, and (2) incident to or in conjunction with such farming operations.
Rodriguez, 360
F.3d at 1185-86.

In Rodriguez, a related case, two employees sued Whiting Farms alleging it
failed
to pay them overtime wages in violation of FLSA. Id. at 1184. Whiting Farms
employed
plaintiffs as skinners and trimmers in its chicken processing operations. Id. The issue
was whether the skinning and trimming of chickens constituted secondary farming. Id.
at
1186. We found the skinning and trimming of chickens was a subordinate and necessary
task incident to Whiting Farms's agricultural operations. Id. at 1190. Accordingly, we
held FLSA exempted Whiting Farms from paying its employees who skinned and
trimmed chickens overtime wages because the practices constituted secondary
agriculture. Id.

B.

In this case, Plaintiff argues packaging employees are too far removed from
farming operations to be considered agricultural. Plaintiff points out packaging
employees do not handle any live chickens, but instead use a computer to generate bar
codes, read priority reports, and scan the product into the computer (much like a
supermarket employee), all of which "demonstrates a level of industrialization that brings
the work beyond the realm of agriculture." We disagree. The raising of chickens on
Whiting Farms constitutes primary farming under FLSA. Holly Farms, 517 U.S. at 399.
The skinning and trimming of chickens at Whiting Farms constitutes secondary farming
under FLSA. Rodriguez, 360 F.3d at 1190. The chicken pelts are brought unchanged to
the packaging department after they are skinned and trimmed. Plaintiff admits the pelts
are packaged on a farm. The only question then is whether Defendants' packaging
employees are performing a practice incident to or in conjunction with the primary and
secondary farming operations at Whiting Farms when they place the pelts (1) into bulk
storage, or (2) onto a board and into a zip-lock bag with a bar-code affixed to it, which is
then scanned into a computer inventory system and delivered to the shipping department.

We need not look far for the answer. Secondary farming encompasses any
practices performed on a farm as an incident to or in conjunction with farming
operations, "including preparation for market, delivery to storage . . . or to
carriers for
transportation to market." 29 U.S.C. § 203(f) (emphasis added); seealsoHolly Farms,
517 U.S. at 398. Defendants' employees who skin and trim the chickens begin preparing
the pelts for market. SeeRodriguez, 360 F.3d at 1190. Packaging employees,
such as
Plaintiff, then complete the job by either "delivering the pelt to storage" or "to carriers
for transportation to market." See 29 U.S.C. § 203(f). Specifically, packaging
employees deliver the pelt to storage if it is not needed to fill a current order; or, if the
pelt is needed to fill an order, the pelt is packaged and delivered to the shipping
department where UPS picks up the pelt and transports it to market. Plaintiff is therefore
engaged in secondary farming under FLSA because she performs tasks incident to and in
conjunction with Defendants' other agricultural operations. The Department of Labor
(DOL) regulations compel the same conclusion; as we explained in Rodriguez:
"Whiting
Farms removes, washes, dries, trims, and packages the pelts. This type of
processing
appears to fall directly in line with the preparation for market considered incidental to
farming under the regulations." Rodriguez, 360 F.3d at 1188 (emphasis added).

Plaintiff also argues Defendants' processing operations change the "raw and
natural state" of the pelt thereby making the process more akin to manufacturing than to
agriculture. SeeMitchell v. Budd, 350 U.S. 473, 481-82 (1956) (holding a
process that
results in changes to the natural state of the product is more akin to manufacturing than
to agriculture); 29 C.F.R. § 780.129 (explaining manufacturing and industrial operations
do not fall under the definition of secondary farming). We rejected this argument in
Rodriguez because the "changes to the product are not substantial and the pelt itself is
preserved in much the same state as it was prior to processing." 360 F.3d at 1188. In
Rodriguez, we explained that comparing Defendants' practices with the fur industry is
persuasive because of the uniqueness involved in raising chickens for their feathers. Id.
Under the regulations, preparation of fur for market includes "[r]emoving the pelt,
scraping, drying, putting on boards, and packing." 29 C.F.R.
§ 780.151(m) (emphasis
added). Defendants' packaging employees also place the substantially unchanged pelts
onto boards and into packages. Thus, the packaging duties at Whiting Farms constitute
secondary farming under the most analogous regulations.(3)Seeid.

Furthermore, we reject Plaintiff's suggestion that modernization of Defendants'
farming operations bring them outside FLSA's definition of agriculture. As the Supreme
Court explained:

Agriculture, as an occupation, includes more than the elemental process of
planting, growing and harvesting crops. There are a host of incidental
activities which are necessary to that process. . . . Economic progress . . . is
characterized by a progressive division of labor and separation of function.
. . . Thus, the question as to whether a particular type of activity is
agricultural is not determined by the necessity of the activity to agriculture
nor by the physical similarity of the activity to that done by farms in other
situations. The question is whether the activity in the particular case is
carried on as part of the agricultural function or is separately organized as
an independent productive activity.

Farmers Reservoir & Irrigation Co., 337 U.S. at 760-61 (emphasis added). At
Whiting
Farms, storing and packaging the pelts are part of the agricultural function of raising
chickens for their feathers. The packaging department is certainly not organized as an
independent productive activity. To the contrary, the packaging department would cease
to exist if Defendants stopped harvesting chickens. Moreover, the Supreme Court has
explained "[t]here is no reason to construe the FLSA so as to discourage modernization
in performing [agricultural] function[s]." Maneja v. Waialua Agric. Co., 349 U.S. 254,
261 (1955). That Defendants use a computer and scanning equipment rather than a
pencil and paper to keep track of their pelt inventory is therefore unremarkable. In sum,
Defendants have demonstrated the packaging operations at Whiting Farms plainly and
unmistakably fall within the agricultural exemption because those practices constitute
secondary farming under FLSA. Defendants are therefore exempt from paying Plaintiff
overtime wages. 29 U.S.C. § 213(b)(12).

III. Plaintiff next argues the district court erred in granting summary
judgment on her
retaliation claim.

A.

FLSA prohibits any person from retaliating against an employee for asserting her
rights under the Act. Specifically, FLSA provides:

[I]t shall be unlawful for any person . . . to discharge or in any other
manner discriminate against any employee because such employee has filed
any complaint or instituted or caused to be instituted any proceeding under
or related to [FLSA], or has testified or is about to testify in any such
proceeding, or has served or is about to serve on an industry committee[.]

FLSA retaliation claims are analyzed under the familiar three-pronged McDonnell
Douglas burden-shifting framework. Richmond v. ONEOK, Inc., 120 F.3d 205,
208
(10th Cir. 1997). Under the first prong of the McDonnell Douglas framework, the
employee must establish a prima facie case of retaliation by demonstrating (1) she
engaged in protected activity under FLSA, (2) she suffered an adverse employment
action contemporaneous with or subsequent to the protected activity, and (3) a causal
connection between the protected activity and the adverse employment action. Conner v.
Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir. 1997). An employee's request
for overtime wages is a protected activity in the form of an unofficial assertion of FLSA
rights. Id. An adverse employment action is a detrimental change in the terms or
conditions of employment, such as termination. Id. at 1395 & n.4. An employee
can
demonstrate a causal connection between the protected activity and the adverse
employment action directly or circumstantially. Id. A causal connection can be
demonstrated circumstantially through evidence that justifies an inference of retaliatory
motive, such as a "very close" temporal proximity between the protected activity and
adverse employment action. Id.; seealsoAnderson v. Coors
Brewing Co., 181 F.3d
1171, 1179 (10th Cir. 1999).

Under the second prong of the McDonnell Douglas framework, the burden of
production shifts to the employer to offer a legitimate non-retaliatory reason for the
adverse employment action. Id. at 1178. The employer need not prove the absence of
retaliatory motive; rather, the employer need only produce evidence that would dispel the
inference of retaliation. Conner, 121 F.3d at 1395.

Under the third prong of the McDonnell Douglas framework, the burden shifts
back to the employee to show genuine issues of material fact exist regarding whether the
employer's proffered reason is unworthy of credence. Anderson, 181 F.3d at 1179. To
do so, an employee can produce direct evidence of retaliation or other evidence showing
the employer's proffered non-retaliatory reasons for the adverse action were pretextual.
Conner, 121 F.3d at 1396-97. An employee demonstrates pretext with evidence the
employer's proffered reasons are so weak, implausible, or inconsistent a reasonable jury
would not believe them. Anderson, 181 F.3d at 1179; Richmond, 120 F.3d at
209.
Conclusory allegations, conjecture, or mere allegations of impartial treatment are
insufficient to show pretext. Id.; Conner, 121 F.3d at 1398.

B.

In this case, Plaintiff engaged in protected activity when she requested overtime
wages. Plaintiff's termination constituted an adverse employment action. Plaintiff has
not presented any evidence of a causal connection between her request for overtime and
termination; however, Plaintiff appears to argue she circumstantially demonstrated a
causal connection because her termination occurred nearly two months after her overtime
inquiry.(4) We will assume without
deciding the nearly two months between Plaintiff's
request for overtime and termination is sufficient to satisfy the causation element of her
prima facie case. SeeAnderson, 181 F.3d at 1179. We thus
assume Plaintiff established
a prima facie case of retaliation.

The burden of production then shifted to Defendants to offer a legitimate non-retaliatory
reason for the adverse employment action. Defendants' non-retaliatory reason
for terminating Plaintiff was her refusal to follow work-related instructions. Plaintiff
thus had the ultimate burden of proving Defendants' proffered reason was a pretext for
unlawful retaliation. Plaintiff failed to carry her ultimate burden because she did not
present any evidence on which a reasonable jury could infer retaliatory motive or
disbelieve Defendants' proffered reason for terminating her employment. Summary
judgment on Plaintiff's retaliation claim under § 215(a)(3) was therefore
appropriate.

For the foregoing reasons, the district court's order granting Defendants' motion
for summary judgment is AFFIRMED.

03-1170, Pacheco v. Whiting Farms

LUCERO, J., Circuit Judge, concurring.

Because Rodriguez v. Whiting Farms, Inc., 360 F.3d 1180 (10th Cir. 2004)
dictates the analysis and result of the majority, I am compelled to join.

FOOTNOTESClick footnote number to return to corresponding location in the text.

*. After examining the briefs and appellate
record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case therefore is
ordered
submitted without oral argument.

1. The district court also held FLSA's
anti-retaliation provision precluded
Plaintiff's state law wrongful discharge claim. SeeConner v. Schnuck Markets,
Inc.,
121 F.3d 1390, 1399 (10th Cir. 1997). Plaintiff does not address the district court's
dismissal of her state law claim on appeal. Plaintiff has therefore waived the issue. Tran
v. Trustees of State Colleges in Colo., 355 F.3d 1263, 1266 (10th Cir. 2004).

3. Plaintiff further argues the district court
erred in failing to consider a DOL
opinion letter concluding Defendants' chicken processing operations, including
packaging, were not agricultural activities. Defendants, however, presented two DOL
reports, which concluded the agricultural exemption "applied to all phases of Whiting
Farms' operations." The DOL issued those reports prior to its opinion letter and after
inspecting Whiting Farms. Agency opinion letters are entitled to deference. Raymond
B. Yates, M.D., P.C., Profit Sharing Plan v. Hendon, 124 S. Ct. 1330, 1342 (2004). An
agency interpretation that conflicts with the agency's earlier interpretation is, however,
entitled to considerably less deference than a consistently held position. Watt v. Alaska,
451 U.S. 259, 273 (1981). We agree with the Rodriguez panel that the DOL's analysis
in
the opinion letter is not "particularly persuasive." 360 F.3d at 1189. Moreover, we have
now concluded twice that Defendants' chicken processing operations constitute
secondary farming under FLSA. The DOL's opinion letter is thus entitled to little, if any,
deference. SeeGeneral Dynamics Land Sys., Inc. v. Cline, 124 S. Ct. 1236,
1248 (2004)
(explaining no deference is owed to an incorrect agency interpretation).

4. Plaintiff also argues the district court
inappropriately granted summary judgment
because genuine issues of material fact exist regarding the timing of her overtime inquiry
and Defendant Johnston's reaction to that inquiry. We disagree. Genuine issues of
material fact do not exist with regard to either the timing of Plaintiff's overtime inquiry
or Defendant Johnston's reaction to that inquiry. With respect to timing, Plaintiff
testified she made the overtime inquiry "at or about" August 26, 2000. Thus, no issue
exists with respect to when Plaintiff requested overtime. With respect to Defendant
Johnston's reaction, we assume Johnston was initially shocked, nervous, and agitated by
Plaintiff's inquiry. Defendant Johnston nevertheless returned the afternoon of Plaintiff's
inquiry and reasonably explained to her why shipping employees received overtime
wages, and packaging employees did not. Farmers Reservoir & Irrigation
Co., 337 U.S.
at 766 n.15.